Did John Key say National would cut KiwiSaver in half? That’s what Labour said in their “John and John” ad. The ad was broadcast on TV and posted on YouTube.

One S Davies-Colley thought was misleading, and complained about it.

Under NZ’s increasingly creaky media law edifice, complaints about TV and radio election ads go to the Broadcasting Standards Authority. But the Advertising Standards Authority has jurisdiction over all the rest – including ads on YouTube. S Davies-Colley complained to the ASA.

The ASA’s complaints board agreed with S Davies-Colley. John Key didn’t say National would cut KiwiSaver in half. He merely said National would cut the minimum employee/employer contribution from 4% each to 2% each.

Okaaaaaay. Sounds like half to me. But apparently it’s not as simple as that. The scheme has a $1000 kick-start amount. That’s not changed. And it has tax credits up to about $1000 a year that remain, though it seems they will be reduced for lower-income earners. What’s more, employers can continue to offer better deals than the minimum. Also, there are KiwiSaver members who don’t have employers, such as the self-employed, caregivers at home and early retirees. Their benefits won’t be cut in half.

So it’s right to say that those employed will have their employer contributions cut in half. And it may be right to say that for most KiwiSaver members, the benefits lost will be about half, though for a fair number, it’s likely to be significantly less.

Here’s my beef: I accept the ad was technically wrong, but I don’t think it was substantially misleading. I think political speech needs to be given breathing space for a degree over-simplification and exaggeration. I don’t think people engaged should have to weigh their claims to a nicety or face a penalty for it. Here, the penalty is not just the removal of the ad but the formal imprimatur of a complaints body on a finding of error. And I think the NZ Bill of Rights Act requires the ASA to give more weight to the importance of political expression.

Don’t get me wrong: I’m delighted that we have a system for ruling on the accuracy of political ads. It offers something of a buffer against terribly misleading ads like those aired by the “Swiftboat Veterans for Truth” who attacked – almost certainly falsely – John Kerry’s war record and may well have swung the election to George W.

Also, I think the ASA does a pretty good job most of the time. For example, they were right to not to uphold a complaint against the National Party’s Iwi/Kiwi billboard, though it was arguably even more deceptive than the Labour ad. They were right to reject a complaint against a water safety ad by the Waitakere City Council, even though it overstated the annual number of drownings in home swimming pools. They are right to recognise the importance of “robust expression of opinion and debate” in their rulings and state in their principles that:

…the Codes fetter the right granted by section 14 [of the NZ Bill of Rights Act – freedom of expression] to ensure there is fair play between all parties on controversial issues. Therefore in advocacy advertising and particularly on political matters the sprit of the Code is more important than technical breaches.

A minority of the complaints board found the breach technical. I agree.

I’m inclined to think the majority members of the complaints board got too picky, as they did in 1997 when the ASA upheld a complaint against an Electoral Commission ad that explained MMP by saying:

Key fact: Each party’s share of all the Party Votes decides its share of all 120 seats in Parliament.

The ASA thought that the ad failed to acknowledge that there were some circumstances when the MMP system wouldn’t pan out like this. True. But overly picky. It loses sight of the big picture. The ASA’s ruling there was overturned by the Court of Appeal in Electoral Commission v Cameron [1997] 2 NZLR 421 for exceeding its jurisdiction and muscling in on the Electoral Commission’s territory. More on that later.

In defence of the ASA majority in the KiwiSaver case, they reasoned that it was important in a high-profile issue like KiwiSaver that the parties get their facts right. They may also have had in mind that accurate financial information is at a premium in these these days of worldwide economic meltdown.

But I think they undervalue the importance of cutting political speech some slack. At election time, political speech is particularly valuable. The KiwiSaver point was focused on policy, and on a political leader’s credibility. National had ready public platforms on which to defend itself. Labour’s statement was accurate on one reading, and any ambiguity ought to have been resolved in its favour (as the Broadcasting Standards Authority often does). I don’t think this limitation on their speech was justifiable.

The case is under appeal to the Advertising Standards Complaints Appeal Board, and I gather it will be heard early next week. The grounds of appeal are limited, though: Labour will have to show new evidence, or a failure of procedural fairness or (most likely, I think) that the decision was against the weight of evidence.

3 Responses to “Labour’s YouTube Boob”

Steven, I largely agree with you here – cut Kiwisaver in half is technically misleading, but National’s policy does halve two of the headline features of the Scheme, and given the Board’s previous strong support of freedom of political advocacy, this particular decision seems odd.

You cite the Iwi/Kiwi billboard, which was not factually false, but was certainly misleading as something analagous that was previously not upheld. I’d offer the “Guardians of Quartz Hill” newspaper ad as something even closer. In that ad, a group opposed to Project West Wind (Meridian’s proposed Makara hills windfarm) had a mock up picture of what the hills could “potentially” look like, which included pictures of windmills 5 times higher than actually proposed and, indeed, higher than was (at least at the time) physically possible to build. This ad was said to be acceptably accurate advocacy, even though it was factually false. I find it very hard to square the “two Johns” decision with this one.

Also, the decisions said:
“The Complaints Board also noted that the claim to “cut KiwiSaver in half” only applied to the minimum contribution required from employees. It noted it did not apply to other components of the KiwiSaver scheme, which according to the National Policy 2008 KiwiSaver and Superannuation policy, would “remain unchanged””
This is a factual error – the minimum employER contributions are also cut in half. I don’t know if it was just a misstatement or a real missunderstanding, but it is in the decision and it is wrong.

Correct me if I’m wrong, but employees and employers are not obliged to cut their contributions. In other words, both groups can continue to contribute at the same level as they do now. That does not seem to me to be cutting KiwiSaver in half. Indeed, it seems to be maintaining it at current levels. If there are any cuts to contributions, it will be decided by employers and employees, not the government.